Monthly Archives: June 2017

A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

The Ontario Legislature has adjourned until September 11, 2017.

Regulations

O. REG 201/96 under the Ontario Drug Benefit – The proposed amendments to the Regulation would allow the Executive Officer to reduce the amount paid to pharmacies for claims submitted to the Ontario Drug Benefit Program (ODB). The reduction would be calculated as 2.8% of the sum of the dispensing fee, compounding fee, and mark-up claimed by a pharmacy for all ODB-funded drug products. This temporary adjustment will take effect on September 1, 2017 and end on whatever dates occurs earlier: February 28, 2019 or the day the total payment adjustment reaches 35 million dollars. These amendments are a result of the shortfall that accrued in the fiscal year 2016/2017 from the Ministry of Health and Long Term Care pharmacy related and drug pricing initiatives, which have yet to fully mature, and are currently not meeting the saving expectations:

reduced mark-up for high-cost drugs;

reduced dispensing fee for residents of long-term care homes;

introduction of a maximum quantity policy for chronic use medications; and

a change to the no-substitution policy to enhance the use of safe, effective generic alternatives to brand name products.

O.REG 187/17 under the Broader Public Sector Executive Compensation Act, 2014 – O.REG 304/16 is amended to implement new requirements about executive salary and performance-related pay caps and adjustments, salary and performance-related pay envelope and maximum increases, and comparator organizations and development of a compensation program (i.e. what type of information should be included in the framework).This Regulation came into effect on June 8, 2017. It was published in the Ontario Gazette on June 24, 2017.

Bill 41, the Patients First Act, provided for the CCACs to be merged into the LHINs by Ministerial order. That process is now complete. The CCACs began transitioning on May 3rd with the North Simcoe Muskoka LHIN, and ended on June 21st with the Central East LHIN.

Big news last week about CASL (Canada’s anti-spam legislation) – the right of private action, which was scheduled to come into effect on July 1st, was indefinitely delayed by an Order-in-Council issued by the Federal Government on June 7.

This is a relief for every organization, whether for-profit, non-profit, orcharitable. The right of private action was generally being met with dread – it allowed for private litigants to sue for any breach of specific sections of CASL and to claim for significant damages. Those damages included statutory damages of up to $1 million per day for violations.

Enforcement activity since 2014

However, this development doesn’t mean that CASL is toothless. Far from it. Fines under CASL are a maximum of $10 million per violation for businesses/organizations. That’s huge.

I attended an update on CASL put on by the CRTC for the Ontario Bar Association in mid-May. There has been a lot of activity around CASL enforcement since CASL came into effect 3 years ago (July 1, 2014). Here are a few tidbits that I learned about:

In lieu of prosecutions, the CRTC tends to pursue “undertakings” when an investigated complaint reveals an apparent violation of CASL

These undertakings require the offender to implement a robust compliance program

Undertakings are accompanied by a reparation payment (in lieu of a fine/penalty)

These reparation payments are substantial:

Porter $150K

Rogers $200K

Kellogg’s $60K

Blackstone $50K

William Rapanos (individual) $15K

Compu-Finder $1.1M (being contested)

The ability of the offender to pay is taken into account as one of the factors in determining an appropriate payment. For example, Blackstone is a small business, resulting in a significantly reduced penalty. Still, $50K is a huge amount for any small business to pay.

Deemed implied consent – 3-year grace period ends July 1

Remember, CASL requires that your organization have consent (express or in some cases implied) when sending commercial electronic messages (CEMs). (To be “commercial”, the email/text must be trying to get people to buy a product or service.)

There was a 3-year grace period in which organizations were allowed to email current and former donors, members, volunteers and those with business relationships. That grace period ends on July 1, 2017. After that, the list of individuals to whom your organization can send CEMs is limited to a 2-year ever-refreshing window – you can only email with implied consent if you have had contact with the individual (as a donor, member, volunteer or for business purposes) for 2 years from the date of that contact.

How to be CASL compliant

What also became evident is that your organization needs to have a CASL policy, undertake and update CASL training of all staff, and monitor CASL compliance. If your organization becomes the subject of a complaint/investigation about CASL, you need to demonstrate good record-keeping – i.e., keeping screenshots of subscribes to newsletter lists and emails containing express consent to receive CEMs.

The CRTC update also offered these additional bits of information:

Non-profits are “not bubbling to the top” of the enforcement radar, which is good news for the health sector

Sending a survey is not a CEM.

The CRTC’s slides were available to attendees. If anyone is interested in receiving a copy, please let me know.

DDO’s CASL Toolkit for the non-profit and charitable sectors

DDO Health law published a “CASL – Anti-Spam Toolkit” in June 2014 targeted at assisting non-profit and charitable organizations to become CASL compliant. Copies are available for purchase – please contact me if interested.